ICWA : Indian Child Welfare Act

Public Law 95-608
Enacted November 8th, 1978

…to protect the best interest of Indian children…

What is ICWA ?

The Indian Child Welfare Act or ICWA is a law that applies to state, county, and private child welfare agencies. It covers tribal children from all American Indian and Alaska Native tribes listed in the Federal Register. ICWA supports Indian tribes’ authority over their members and the wellbeing of Indian Children and families.

Who is an Indian Child ?

Under ICWA, an Indian child is any unmarried person who is under the age of eighteen AND is either a member of an Indian tribe or is eligible for membership in an Indian tribe AND is the biological child of a member of an Indian tribe. It is up to the tribe to say who is a tribal member.

Why is the law only for Indian children ?

History tells us why… Indian tribes are sovereign nations. The U. S. Government has a unique political relationship with Indian nations through treaties that it does not have with any other peoples in our country.

Why was the law passed ?

In 1978 Congress declared “that it is the policy of this Nation to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum FEDERAL standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”

Tragically, countless numbers of Indian children have been removed from their families and tribes. Boarding schools run by the government and other groups kept school-age children away from their homes. Many children lost their traditions and culture and experienced serious problems later in life.

Often, the child welfare agency workers used their own cultural beliefs to decide if Indian children were being raised properly. Also, many have not understood the importance of the extended family in bringing up children in native cultures.

Does the law apply to Indian people not living on an Indian Reservation?

ICWA applies to all Indian children who are members of or are eligible for membership in a federally recognized tribe AND are the biological children of a member of an Indian tribe. The law applies to ALL Indian children regardless of where they live. It is important that child welfare workers assess ancestry of all children referred for neglect or abuse. If known, the child’s tribe must always be notified by certified mail of any court proceedings involving the placement of an Indian child in foster care, termination of parental rights, or adoption. If ancestry is not clear the Bureau of Indian Affairs must be notified.

How does the law work ?

Under ICWA every effort will be made to try to keep Indian families together. If the removal of a child is necessary, “active rehabilitative efforts” must be made to bring the family back together. This means that everything possible must be done to help the family resolve the problems that led to neglect or abuse. This includes referrals to services that are sensitive to the family’s culture.

If the child is removed ICWA requires that child welfare agencies must actively seek to place the child with (1) relative, (2) a tribal family, or (3) an Indian family before placing the child in a non-Indian home.

How can you protect your children ?

If your child is eligible for membership with an Indian tribe get your child enrolled. You should always keep the following papers in a safe place: enrollment numbers/papers, Certificates of Indian Blood (CIB’s), census numbers or blood quantum cards, and birth certificates. Other things that may help include a family tree or genealogy records.

If you are referred for child abuse or neglect and need legal help, you have the right to a court appointed attorney if you cannot afford one.